My Turn: Equal access to law is not a reality

Posted: Friday, February 21, 2003

By Aaron M. Clemens

After reading about the plight of the Hawkins family ("Family's possessions arrive in shambles," Feb. 12), I am saddened at their slim chance of recovering the losses caused by the damage to and the delay in the delivery of their belongings. If the Hawkinses were to have a successful legal case, an attorney would need to volunteer. Flaws in the legal system, however, mean people will continue to endure abuses at the whim of large corporations, even if adverse publicity forces Century Express Van Lines and Classic International to treat the Hawkinses with dignity in this instance.

If the Hawkinses hired an attorney and even if this attorney won, these moving companies, which according to the Empire delivered the belongings two months late after nearly extorting an extra $5,700, will continue doing what they are doing because there are not enough attorneys who can donate the tens of thousands of dollars worth of their time to recover the costs of filing such suits.

Therefore, the Hawkinses are not going to be made whole for this incident, except through the already generous contributions of neighbors. I am sure neighbors wonder why the people who caused the damages shouldn't be held responsible.

Many self-proclaimed conservatives would have you believe anyone in America can sue over frivolous issues. They often cite the McDonald's coffee case. "Coffee lady" and Albuquerque resident Stella Liebeck was a passenger in a car driven by her grandson. The car was stopped when the coffee spilled as Liebeck, who was 79, tried to remove a flimsy lid.

Liebeck suffered third-degree burns over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent surgery: skin grafting and the removal of burnt tissue. Liebeck's attorney offered to settle her claim for $20,000, which would barely cover her surgery, but McDonald's refused.

During discovery, which is the part of the trial where attorneys on each side seek access to the other parties' documents, McDonald's produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebeck's, but McDonald's insisted it had no duty to provide a warning to customers or to cool its coffee from the corporately mandated 185 degrees Fahrenheit, which causes third-degree burns within as few as two seconds of contact with the skin.

A jury found Liebeck deserved $200,000 in compensatory damages, but reduced the amount to $160,000 after finding Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, but the trial court reduced this award to $480,000, or three times the compensatory damages. We will never know how much money Liebeck received for McDonald's conduct, which the judge described as "reckless, callous, and willful," because rather than risk the exhausting appeals McDonald's would have fought, Liebeck entered into a secret settlement, likely for far less than the final amount she was awarded in court.

Even with the Hawkins' apparently easy-to-win case, even if these moving companies were "reckless, callous, and willful," and even if punitive damages can be garnered, any attorney hired will likely need to charge too much to pierce this corporate veil of irresponsibility.

The day of the death of Sen. Paul Wellstone, Ralph Nader composed himself to continue his traditional presentation topic, which is the hijacking of the justice system for the few. Nader told an audience of public interest-minded law students that people harmed to the tune of $10,000 or less can rarely secure an attorney even with the simplest and most clearcut case possible. Most corporations would rather fight these lawsuits than give in. This quite economically "efficient" act is done to deter future litigation because any success by the person harmed by this corporation is pyrrhic. This system signals not that we have too many lawsuits in America, such as by the "stupid coffee lady," but that we have too little access to the courts for people who are not employed by large corporations, like the Hawkins.

Aaron M. Clemens, a 1997 graduate of JDHS, is in his second year at Georgetown University Law Center and plans to clerk for the Alaska Public Defender Association this summer.